Terms of Serice
Updated on October 22, 2013 - IMPORTANT - READ CAREFULLY:
THIS IS A LEGAL AGREEMENT ("AGREEMENT") BETWEEN CUSTOMER AND FROGTOON MEDIA, INC. BY ACCESSING AND/OR USING THE SERVICE(S), YOU ARE AGREEING, ON BEHALF OF YOURSELF AND/OR YOUR COMPANY, TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SERVICE(S).
Product Support Portal: http://support.frogtoon.com/social/Email: support_social@frogtoon.com1. Definitions. As used in this Agreement, the following defined terms shall apply: 1.1. Agreement means these Terms of Service as may be amended from time to time and any other documents incorporated by reference. 1.2. Frogtoon means the entity set forth in Section 9 of this Agreement. 1.3. Confidential Information means any non-public information and/or materials provided by a Party under this Agreement to the other Party and reasonably understood to be confidential. 1.4. Customer means the legal entity or individual that enters into this Agreement. 1.5. Effective Date means the date of electronic acceptance of this Agreement by Customer. 1.6. My Account means Customer's specific page within the Frogtoon website where Customer subscribes to the Services and provides Customer account information such as Registration Data and Payment Information. Customer may access Customer's My Account page at any time and update certain account information. 1.7. Party means individually Customer or Frogtoon and Parties means Customer and Frogtoon collectively. 1.8. Payment Information means limited Customer information related to billing and payment matters collected by Frogtoon during the online registration process. Such Payment Information will include a valid debit card or credit card number with available credit sufficient to pay the applicable Subscription Fees, an election of a preferred billing frequency, and other information as required by Frogtoon. 1.9. Privacy Policy means the Frogtoon Privacy Policy which can be viewed by clicking the "Privacy Policy"hypertext link located on the Frogtoon website.1.10. Registration Data means limited Customer information collected by Frogtoon during the online registration process. 1.11. Services means the generally available services, provided by Frogtoon to Customer, as subscribed to by Customer hereunder. The Services are described on Exhibit 1 and Frogtoon may update the Services at any time in order to maintain the effectiveness of the Services.1.12. Subscription Fee means the fee for Customer's use of and access to the Services as subscribed to by Customer.1.13. Term means the term of this Agreement commencing on the Effective Date and continuing until the expiration of all subscription period(s), including any renewal subscription period(s), for Services as stated on Customer's My Account page. 2. Customer Rights and Restrictions.2.1. Customer Access and Use. During the Term of this Agreement, and upon payment of all applicable Subscription Fees, Customer may access and use the Services pursuant to and in accordance with the provisions of this Agreement. Frogtoon will enable Customer and its Named Authorized Users to access and utilize the Services as contemplated by the Agreement. Thereafter, Customer shall be solely responsible for selecting and managing its users and providing each of them with the information necessary for access to and use of the Services. Customer may reassign Named Authorized Users, Devices and/or Server(s) without incurring additional fees provided that the number of such Named Authorized Users, Devices and/or Server(s) does not increase. Customer may inform its users, customers and employees that the Services are powered by Frogtoon.. If Customer's Internet connection fails, the Services will also fail. The Services may cease to function if there is a power cut or failure. These failures may be caused by reasons outside of the control of Frogtoon.2.2. Reverse Engineering. Except to the extent permitted by law, Customer may not modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or otherwise attempt to decipher any code used in connection with the Services and/or any other aspect of Frogtoon's technology.2.3. Abuse. Customer shall not access and/or engage in any use of the Services in a manner that abuses or materially disrupts the end-users Internet experience, link to any Services and/or websites to display any content or material that is deemed harassing, threatening, indecent, obscene, slanderous, or otherwise unlawful.2.4. Illegal Purposes. Customer shall not use the Services for fraudulent or illegal purposes. Furthermore Customer shall not use the Services to direct users to websites or services containing malware, spyware, or any other type of software that could potentially create harm to the end-users computers or devices. 2.5. Resale. Customer shall not market, offer to sell, sell and/or otherwise resell the Services to any third Party. 2.6. No Representation by Customer. Neither Customer nor any of its Named Authorized Users, customers, employees or representatives shall make any representations with respect to Frogtoon, the Services or this Agreement (including, without limitation, that Frogtoon is a warrantor or co-seller of any of Customer's products and/or services).2.7. Cookies. By using the Frogtoon's Services or websites, Customer agrees to the use of cookies. Cookies are small text files that contain data and are used to enhance Customer's experience. Frogtoon uses cookies to facilitate the use of the Services and websites. Analytical cookies are used to collect information to improve how the Services and websites work. Functional cookies are used to store Customer's preferences and improve the functionality of the Services.2.8. Limited Grant of Rights. No other rights are granted hereunder to Customer except as expressly set forth in this Agreement.3. Online Registration. To subscribe to Services via the various Frogtoon product websites, Customer must complete the online registration process, including Customer's electronic acceptance of this Agreement, and Frogtoon must then accept such online registration. Frogtoon may reject an online registration by a potential Customer in its sole discretion and is not obligated to provide a reason for its rejection. In the event a potential Customer's online registration is rejected by Frogtoon, such potential Customer may submit a new online registration for re-evaluation by Frogtoon.3.1. Registration Data. All Registration Data provided by or on behalf of Customer must be current, complete and accurate, and Customer is solely responsible for updating such Registration Data as necessary. Frogtoon reserves the right to terminate this Agreement immediately in the event any Registration Data is found to be inaccurate, incomplete and/or not current at any time. Customer is hereby informed that Registration Data is subject to automatic processing by Frogtoon for the purposes of managing Customer's account. Customer will have access to Registration Data and may update or correct it as necessary. 3.2. Account Password/Security. As part of the online registration process, Customer will choose a password and a user name. Customer is entirely responsible for maintaining the confidentiality of its password and account, and Customer is solely responsible for any and all activities that occur under its account. Customer agrees to notify Frogtoon immediately of any unauthorized use of its account or any other breach of security. Frogtoon shall not be liable for any loss that Customer may incur as a result of a third party using its password or account, either with or without its knowledge. Customer may be held liable for losses incurred by Frogtoon and/or another party due to a third party using Customer's account or password. 3.3. Payment Information. All Payment Information provided by or on behalf of Customer must be current, complete and accurate, and Customer is solely responsible for updating such Payment Information as necessary. Customer hereby authorizes Frogtoon, from time to time, to take steps to determine whether the debit card or credit card number provided is valid. Frogtoon reserves the right to terminate this Agreement immediately in the event any Payment Information is found to be inaccurate, incomplete and/or not current at any time. Frogtoon shall not be responsible for any overdraft charge or other fees that may be incurred by Frogtoon's use of Customer's debit card or credit card for payment hereunder. 3.4. Trial and Promotional Offers. From time to time, Frogtoon may offer certain trial and/or promotional offers. Frogtoon reserves the right to discontinue or modify coupons, credits, trials and promotional offers at its discretion and without notice. Any such trial or promotional offers may not be combined with other coupons, credits, trials, promotions or any other discounts, and are limited to one (1) per Customer. The details of any trial or promotional offers applicable to Customer shall be listed on Customer's My Account page and/or the Frogtoon website offering the trial.3.5. Privacy Policy. Frogtoon's use of any information provided by Customer, including without limitation, Registration Data and Payment Information, is set forth in Frogtoon's current Privacy Policy. 4. Term and Termination.4.1. Term. This Agreement shall commence on the Effective Date and continue for the Term.4.2. Termination for Cause. Frogtoon reserves the right to terminate this Agreement immediately if Customer breaches any of its material obligations under this Agreement. 4.3. Effect of Termination. Upon termination of this Agreement, Customer will immediately discontinue all access to and use of the Services and cease to represent in any form that it is a user of the Services. Frogtoon will immediately disable Customer's account upon termination. Neither Party shall be liable for any damages resulting from a termination of this Agreement in accordance with this Section 4.3;provided, however, the termination of this Agreement shall not affect any claim arising prior to such termination.5. Fees and Charges.5.1. Subscription Fees. Customer is responsible for all Subscription Fees, and hereby authorizes Frogtoon to obtain payment of all such Subscription Fees in accordance with the Payment Information, as stated on Customer's My Account page. Customer shall also be responsible for all applicable taxes (withholding tax, sales tax, services tax, value-added tax (VAT), goods and services tax (GST), etc.) or duties imposed by any government entity or collecting agency EXCEPT those taxes based on Frogtoon's or Frogtoon Media, Inc.'s net income. In the event Customer fails to satisfy its tax and/or duty obligations herein, Customer shall reimburse Frogtoon upon demand for any taxes and/or duties paid on behalf of Customer and shall indemnify and hold Frogtoon harmless against any claim and/or liability (including penalties) resulting from Customer's failure to pay such taxes and/or duties. 5.2. Internet and Data Charges. Customer shall be responsible for all fees and charges imposed on Customer by Customer's Internet Service Providers, telephone carriers, wireless providers, and other voice and/or data transmission providers for data transmission used by Customer to access and use the Services.6. Confidentiality. Unless expressly authorized in writing by the other Party, neither Party shall disclose to any third party any Confidential Information of the other Party, nor use such Confidential Information in any manner other than to perform its obligations under this Agreement. The foregoing restrictions do not apply to any information that (i) is publicly disclosed through no fault of the receiving Party, (ii) is already lawfully in the receiving Party's possession and not subject to a confidentiality obligation to the disclosing Party, (iii) becomes known to the receiving Party from a third party having an apparent bona fide right to disclose the information, or (iv) is Confidential Information that the receiving Party is obligated to produce pursuant to an order of a court of competent jurisdiction or a valid administrative subpoena, provided receiving Party supplies disclosing Party with timely notice of such court order or subpoena. Furthermore, Customer will keep in confidence all passwords and/or other access information related to the Services. Customer acknowledges that Frogtoon, its partners, its content providers, and its licensors, retain all intellectual property rights and title, in and to, all of their Confidential Information and/or other proprietary information. This shall include, but not be limited to: products, services, and the ideas, concepts, techniques, inventions, processes, software or works of authorship developed, embodied in, or practiced in connection with the Services provided by Frogtoon hereunder. 7. WARRANTY. FROGTOON WARRANTS THAT (i) ANY SERVICES PROVIDED HEREUNDER WILL BE PERFORMED IN A PROFESSIONAL AND WORKMANLIKE MANNER;(ii) THE SERVICES WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE APPLICABLE SERVICE DOCUMENTATION UNDER NORMAL USE AND CIRCUMSTANCES;AND, (iii) THE FUNCTIONALITY OF THE SERVICES WILL NOT BE MATERIALLY DECREASED DURING THE TERM. FROGTOON'S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE, AT THE SOLE OPTION OF FROGTOON AND SUBJECT TO APPLICABLE LAW, TO PROVIDE RESTORED SERVICE(S) WHICH CONFORMS TO THESE WARRANTIES OR TO TERMINATE THE SERVICE(S) AND PROVIDE A PRO-RATED REFUND OF ANY PREPAID SUBSCRIPTION FEES (FOR THE PERIOD FROM THE DATE OF THE BREACH THROUGH TO THE END OF THE TERM). TO THE EXTENT PERMITTED BY APPLICABLE LAW, FROGTOON DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FROGTOON MAKES NO WARRANTY THAT ANY OF THE SERVICES WILL MEET THE REQUIREMENTS OF CUSTOMER OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER.8. LIMITATION ON LIABILITY. IN NO EVENT SHALL FROGTOON BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY OR OTHER DAMAGES RELATED TO THIS AGREEMENT OR WHETHER DIRECT OR INDIRECT: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, (iv) LOST PROFITS, AND (v) COSTS OF RECOVERY OR ANY OTHER DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR OTHERWISE, AND WHETHER OR NOT FROGTOON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, FROGTOON'S LIABILITY HEREUNDER IS LIMITED TO $50.00. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER. 9. Contracting Party, Choice of Law and Location for Resolving Disputes. The Frogtoon contracting entity under this Agreement, the applicable notice address, governing law and jurisdiction to resolve disputes (including non-contractual disputes and claims) will not depend on where Customer is domiciled as Frogtoon contracting entity is located in Atlanta, Georgia, U.S.A 10. Additional Terms.10.1. Relationship of the Parties. Customer and Frogtoon are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.10.2. Assignment. Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part, and any such attempted assignment or delegation shall be void.10.3. Force Majeure. Neither Party will be responsible for any delay, interruption or other failure to perform under this Agreement due to acts beyond its reasonable control, but only for so long as such conditions persist. Force majeure events include, but are not limited to: natural disasters (e.g., lightning, earthquakes, hurricanes, floods);wars, riots, terrorist activities, and civil commotions;activities of local exchange carriers, telephone carriers, wireless carriers, Internet service providers, and other third parties;explosions and fires;embargoes, strikes, and labor disputes;governmental decrees;and any other cause beyond the reasonable control of a Party.10.4. Notice. Frogtoon may provide Customer with notice via email, regular mail and/or postings on the Frogtoon website. 10.5. High-Risk Use. Customer hereby acknowledges that the Services are not designed or intended for access and/or use in or during high-risk activities. Frogtoon hereby expressly disclaims any express or implied warranty of fitness for such purposes. 10.6. Compliance with Laws. Both Parties agree to comply with all applicable local, state, national and foreign laws, rules, and regulations, including, but not limited to, all applicable export and import laws and regulations, in connection with their performance, access and/or use of the Services under this Agreement. Notwithstanding the preceding sentence Frogtoon does not guarantee that the Services shall be appropriate and/or available for use in any particular location and Customer is responsible for compliance with local laws to the extent applicable. Frogtoon reserves the right to modify the Services for any reason, without notice and without liability to Customer or any end user. Customer shall comply with all legal duties applicable to the Customer including obligations as data controller by virtue of Customer's role as Administrators and/or Named Authorized User. Customer must provide the relevant persons and/or participants with all information Customer is required by law to provide and, if necessary, must obtain the consent of these persons and/or participants. Notwithstanding any other provision in this Agreement, Frogtoon shall have the right to terminate this Agreement immediately upon the determination by Frogtoon that Customer is not in compliance with U.S. export laws or violates any government privacy and/or data protection laws. 10.7. No Waiver. The failure of either Customer or Frogtoon in any one or more instance(s) to insist upon strict performance of any of the terms of this Agreement will not be construed as a waiver or relinquishment of the right to assert or rely upon any such term(s) on any future occasion(s). 10.8. Severability. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from this Agreement and the other provisions shall remain in full force and effect and the Parties agree to comply with the remaining terms of this Agreement in a manner consistent with the original intent of the Agreement. 10.9. No Third Party Beneficiaries. No person or entity not a party to this Agreement will be deemed to be a third party beneficiary of this Agreement or any provision hereof.10.10. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and understandings with respect to the same. No waiver or amendment of any term or condition of this Agreement shall be valid or binding on either Party unless agreed to in writing by both Parties.10.11. Captions and Headings. Captions and headings are used herein for convenience only, are not a part of this Agreement, and shall not be used in interpreting or construing this Agreement. 10.12. Controlling Language. The English language version of this Agreement shall be the controlling version and is incorporated by reference into any translation of this Agreement. Any translation or other language version of this Agreement shall be provided for informational purposes only. 10.13. References. Pronouns contained in this Agreement shall apply equally to the feminine, neuter and masculine genders. The singular shall include the plural, and the plural shall include the singular.10.14. Beta version. The terms of this subsection 10.14 shall only apply to Customer with respect to any "Beta' version of any of the Services (the "Beta Services") made available to Customer for purposes of evaluation and feedback. Customer acknowledges that the Beta Service(s) Customer is evaluating may contain bugs, errors and other problems and is provided to Customer "as-is."Therefore, to the extent permitted by applicable law, Frogtoon disclaims any warranty, condition and/or liability obligations to Customer of any kind with respect to the Beta Services. Customer further acknowledges the importance of communication between Frogtoon and Customer during Customer's use of the Beta Services and participation in Frogtoon's Beta program and hereby agrees to receive related correspondence and updates from Frogtoon. In the event Customer requests to opt-out from such communications, Customer's participation in the Frogtoon Beta program will be canceled. Customer also hereby acknowledges that Frogtoon has not made any representations, promises or guarantees that the Beta Services will ever be announced or made available to anyone in the future and that Frogtoon has no express or implied obligation to Customer to announce or introduce the Beta Services. During the Frogtoon Beta program, Customer will be asked to provide feedback regarding Customer's use of the Beta Service(s) and Customer hereby grants to Frogtoon a perpetual, royalty-free worldwide license to use and/or incorporate such feedback into any Frogtoon product or service (including the Beta Services) at any time at the sole discretion of Frogtoon. With respect to the Beta Services, this subsection shall supersede any other terms and conditions contained herein, but only to the extent necessary to resolve conflict. EXHIBIT 1: DESCRIPTION OF SERVICES1. Description of Services. The selection(s) made and submitted by Customer during the online registration process will identify the specific Service(s) subscribed to by Customer hereunder and the number of Named Authorized Users for each Service, all of which shall be listed on Customer's My Account page within the Frogtoon website. Notwithstanding, this Agreement will apply to any Services subscribed to by Customer at any time on or after the Effective Date. The following describes the Services currently offered by Frogtoon: 1.1. Frogtoon Social Badge. By subscribing to the Frogtoon Media Partner Service, Customer may access, post, publish, and use the Frogtoon Social Badge widget for the purpose of enabling pages on Frogtoon.com and other Frogtoon web properties to display the Frogtoon Social badge and for end-users to click on it and interact with it. 1.2. Services Definitions: 1.2.1. Named Authorized User(s) (sometimes referenced as "NAU") means those Customer-designated individuals who may access and use the Services in accordance with this Agreement. Each Named Authorized User must have a unique identifier (i.e. "Named User ID"as defined below). Customer-designated individuals may include, by way of example, employees, contractors, consultants and agents or third parties with which Customer transacts business as determined by Customer.1.2.2. Named User ID means the unique identifier of each Customer-designated individual authorized to use the Services. A Named User ID may not be of a generic nature (e.g., john.doe@company.com is a unique Named User ID;whereas support@company.com, user1@company.com, trainer@company.com, etc., are examples of generic user identifiers). 2. Customer Access and Use. During the Term of this Agreement, and upon payment of all applicable Fees, Customer may access and use the Services subscribed to hereunder pursuant to and in accordance with the provisions of this Agreement. Frogtoon will enable Customer and its Named Authorized Users to access and utilize the Services as contemplated by the Agreement. Thereafter, Customer shall be solely responsible for selecting and managing its users and providing each of them with the information necessary for access to and use of the Services. Customer may reassign Named Authorized Users, Devices and/or Server(s) without incurring additional fees provided that the number of such Named Authorized Users, Devices and/or Server(s) does not increase. Customer may inform its users, customers and employees that the Services are powered by Frogtoon. If Customer's Internet connection fails, the Services and some related services will also fail. The Services may cease to function if there is a power cut or failure. These failures may be caused by reasons outside of the control of Frogtoon. 3. Training. In connection with the Services subscribed to hereunder, Customer shall have access to generally available video(s) for all individuals who are either Named Authorized Users or authorized by Customer to access the Services. 4. Privacy. Frogtoon's Privacy Policy may be viewed at Frogtoon Media Partner Service http://www.frogtoon.com/social/privacy-fr.html . The Privacy Policy is included in the definition of "Privacy Policy"as set forth in Section 1.9. Frogtoon reserves the right to modify the privacy policies in its reasonable discretion from time to time.5. Data Protection. To the extent the Services store or process personal data on behalf of Customers, Frogtoon shall maintain such personal data in accordance with the applicable privacy policy and shall disclose such personal data only pursuant to instructions from Customer or as required by law. Frogtoon has implemented appropriate technical and organizational measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access.
